CJEU - C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D

As to the jurisdiction of the Court, in order to apply a uniform interpretation when provisions of international law are replicated in national law as well as EU law the Court  has specific jurisdiction (Para 71). Therefore, even though the national provisions were present prior to the entry into force of the Directive 2004/83/EC in Germany they correspond to those in the Directive and hence there is jurisdiction. Therefore, the questions referred for a preliminary ruling must be answered.

Firstly the Court observed the way in which Directive 2004/83/EC should be interpreted: in light of its general scheme and purpose, and in a manner consistent with the 1951 Geneva Convention and other relevant treaties, and consistent with the fundamental rights recognised by the Charter. Firstly the Court examined the acts commited by organisations annexed to the EU Common Position 2001/931 to see whether they fell within categories of serious crimes and held that they do fall within the scope of non-political serious crimes under Article 12(2)(b) and c). International terrorist acts are, generally speaking and irrespective of any State participation, contrary to the purposes and principles of the UN. Therefore the competent authorities in Member States can apply Article 12(2)(c) to a person who, in the course of his membership of such an organisation, has been involved in terrorist acts with an international dimension (Para 84). But does it permit exclusion if the person has actively supported the armed struggle waged by the organisation, possibly occupying a prominent position within that organisation?  The Court found that the competent authority must firstly undertake for each individual case, an assessment of the specific facts within its knowledge, with a view to determining whether the acts committed by the person in question fall within the exclusion clauses. Para 88: The mere fact that a person is a member of one of these organisations cannot automatically mean that the person must be excluded from refugee status. The Court noted that there was no direct relationship between Common Position 2001/931, the Framework Decision 2002/475 and Directive 2004/83. However the terrorist nature of that group must be taken into account when determining initially whether that group has committed acts falling within the scope of the exclusion clauses.  Before a finding can be made the grounds of exclusion apply it must be possible to attribute to the person concerned a share of responsibility for the acts committed by the organisation in question while that person was a member (Para. 95).  This must be assessed in light of both objective and subjective criteria. Factors to assess include: the true role played by the person concerned in perpetration of the acts in questions; his position within the organisation; the extent of knowledge he had; or was deemed to have, of its activities; any pressure to which he was exposed; or other factors likely to have influenced his conduct (Para 97). If the person has a prominent position within the organisation there can be a  presumption that the person has individual responsibility but it nevertheless remains necessary to examine all the relevant circumstances before excluding that person from refugee status pursuant to Article 12(2)(b) or (c).

As to the second question the Court made the distinction between  Article 12(2) of the Directive and Article 14(4)(a) of the Directive which takes into consideration whether a person may currently pose a danger to the Member State concerned (Para 101). It also referenced Article 21(2) of the Directive and Article 33(2) of the 1951 Geneva Convention in relation to non-refoulement. Article 12(2)(b) and (c) apply only in relation to crimes committed outsider the country of refuge prior to admission and are linked to those undeserving of protection which refugee status entails. Exclusion from refugee status under Article 12(2) is not conditional on the person concerned representing a present danger to the host Member State (Para 105). As regards the third question the Court held that exclusion pursuant to Article 12(2)b) and c) is not conditional on a proportionality test being undertaken. It is important to the note the distinction the Court made between exclusion from refugee status and the separate question of whether a person can be deported to his country of origin (Para 110). In light of the other questions the fourth question was not addressed. In response to the fifth question the Bundesverwaltungsgericht want to know whether it was compatible with Directive 2004/83, for the purposes of Article 3 of that Directive, for a Member State to recognise that a person excluded from refugee status pursuant to Article 12(2) has a right of asylum under its Constitutional law. The Court held that ‘in view of the purposes underlying the grounds for exclusion laid down in that Directive, which is to maintain the credibility of the protection system provided for in that Directive in accordance with the 1951 Geneva Convention, the reservation in Article 3 of that Directive precludes Member States from introducing or retaining provisions granting refugee status under Directive 2004/83 to persons who are excluded from that status pursuant to Article 12(2)(Para 115).  However the Court noted that it does not preclude States from applying another kind of protection outside the scope of the Directive. As long as a clear distinction is made between national protection and protection under Directive 2004/83 they do not infringe the system provided by that Directive.